"A trial on a charge of driving while intoxicated may raise constitutional issues"
At the present time, United States Supreme Court decisions do not support a contention that requiring an accused to submit to chemical intoxication tests violates his fifth amendment privilege against self-incrimination. In considering the constitutionality of a state's implied consent statute, counsel should carefully note the impact of several United States Supreme Court decisions. In a leading case, Rochin v. California, 342 US 165, 96 L Ed 183, 72 S Ct 205, 25 ALR2d 1396, decided in 1952, police conduct in having an accused's stomach pumped to determine if he had swallowed narcotics was held to be so objectionable that a subsequent confession was inadmissible as coerced. However, in another, later case, Breithaupt v. Abram, 352 US 432, 1 L Ed 2d 448, 77 S Ct 408, decided in 1957, results of analysis of a blood sample taken by a physician while the subject was unconscious was held to be admissible as not violating the defendant's rights. In the famous Miranda decision, Miranda v. Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602, 10 ALR3d 974, the Supreme Court in 1966 held that, in order to render a confession admissible, warnings must be given prior to in-custody interrogation of individuals suspected of commission of a felony. In Schmerber, Schmerber v. California, 384 US 757, 16 L Ed 2d 908, 86 S Ct 1826, decided later in the same term of court, results of an analysis of a blood sample taken at a hospital while the suspect was conscious was held to be admissible in evidence as not violating due process or other constitutional safeguards.
Thus, the defense attorney should be prepared to raise all possible constitutional objections under both the federal and state constitutions. Defendants often have a double chance for acquittal on constitutional grounds—one under the federal and one under the state constitution. The state court may be more solicitous of a suspect's rights under state constitutional provisions than was the United States Supreme Court in Schmerber v. California. Of course, this is not generally the case.
In one State circumstance, two South Dakota police officers stopped the defendant's car after they saw him fail to stop at the stop sign. The defendant failed field sobriety tests and he was placed under arrest and read his Miranda rights. The defendant then refused to submit to a blood-alcohol test, saying that he was too drunk to pass it. South Dakota law specifically declares that refusal to submit to a blood-alcohol test "may be admissible into evidence at the trial". Nevertheless, the defendant sought to suppress all evidence of his refusal to take the test. A South Dakota Circuit Court granted the suppression motion, holding among other things, that allowing evidence of refusal violated the defendant's federal constitutional rights. On appeal, the South Dakota Supreme Court affirmed the suppression of the act of refusal on the grounds that the state statute, which allowed the introduction of this evidence, violated the federal and state privilege against self-incrimination. On certiorari, the United States Supreme Court reversed and remanded. In South Dakota v. Mellive (1983, US) 74 L Ed 2d 748, 103 S Ct 916, it was held that the admission into evidence of defendant's refusal to submit to the blood-alcohol test did not offend the Fifth Amendment right against self-incrimination since the refusal to take such a test, after a police officer had lawfully requested it, was not an act coerced by the officer and since the offer of taking the test was clearly legitimate and became no less legitimate when the state offered the second option of refusing the test, with the attendant penalties for making that choice.